Citation: Nash v R [2019] NSWCCA 124
Court: Court of Criminal Appeal, New South Wales
Date: 17 June 2019
Judges: Macfarlan JA; Harrison J; Hamill J
Background
In October 2011, a man was followed home from a golf club by a police officer and subsequently charged with driving under the influence of alcohol and resisting arrest. At the Local Court hearing in May 2012, he gave evidence that he had consumed only two or three schooners of light beer during his time at the golf club. The magistrate acquitted him on both charges, finding the prosecution had not proved beyond reasonable doubt that he was under the influence of alcohol.
The acquitted man later obtained civil damages against the State for unlawful arrest, assault, and malicious prosecution. In those proceedings, his counsel tendered CCTV footage from the golf club that appeared to confirm his account of limited alcohol consumption. Police subsequently discovered the footage had been edited. The original footage showed the man purchasing seven schooners of full-strength beer. The golf club's general manager pleaded guilty to tampering with evidence and was imprisoned.
The man was then charged by indictment in the District Court with, among other things, perjury arising from his evidence to the Local Court that he had drunk no more than three schooners of light beer. He sought a permanent stay of that perjury count on the ground that prosecuting him for it would impermissibly controvert his acquittal on the driving under the influence charge.
Legal Issues
- Whether a prosecution for perjury, based on evidence the accused gave at a prior hearing, controverts or undermines an acquittal entered at that same hearing, in breach of the principle of incontrovertibility
- Whether the principle against double jeopardy barred the perjury prosecution
- Whether a permanent stay of the perjury count was warranted
Decision
The Court of Criminal Appeal granted leave to appeal, recognising an arguable issue of principle, but unanimously dismissed the appeal. The central question was whether prosecuting the man for lying about how much he had drunk at the golf club would necessarily controvert the magistrate's acquittal on the driving under the influence charge.
Macfarlan JA, with whom Harrison J and Hamill J agreed, analysed the magistrate's reasons carefully. The magistrate had not acquitted the man because she accepted his account of drinking only light beer in small quantities. Rather, she acquitted him because the prosecution failed to prove, to the criminal standard, that whatever alcohol he consumed had rendered him unfit to drive. The magistrate identified multiple evidentiary gaps: no expert evidence about the effect of the alcohol consumed on this particular person, no evidence of erratic driving, and physical observations by the officer that she found could be attributed to the confrontation itself rather than intoxication.
Because the man's evidence about his alcohol consumption was not the foundation of the acquittal, and because a conviction for driving under the influence turns on actual impairment rather than the quantity consumed, the pending perjury charge did not call the acquittal into question. Prosecuting him for lying about how many drinks he had would not require the court to find that he was guilty of the driving offence of which he had been acquitted.
All three judges also confirmed that a permanent stay is an exceptional remedy, available only in extreme cases. The circumstances here did not meet that threshold, and the primary judge's refusal of the stay was correct.
Orders Made
• Dismiss the application for a permanent stay of proceedings
Key Takeaways
- The principle of incontrovertibility prevents a subsequent prosecution from directly overturning or necessarily contradicting a prior acquittal, but it does not shield an accused from all prosecution connected to the same factual circumstances.
- A conviction for driving under the influence depends on proof of actual impairment, not on the quantity of alcohol consumed. Because the magistrate's acquittal rested on the prosecution's failure to prove impairment (rather than acceptance of the accused's account of limited drinking), a later perjury charge about that account did not controvert the acquittal.
- Where an accused's allegedly false evidence was not critical to the reasoning that produced an acquittal, prosecuting that accused for perjury in respect of that evidence does not offend the principle against double jeopardy.
- Permanent stays of criminal proceedings are exceptional remedies granted only in extreme cases, consistent with the approach confirmed in Jago v The District Court of New South Wales (1989) 168 CLR 23 and applied in subsequent New South Wales Court of Criminal Appeal decisions.
- The Court of Criminal Appeal left open the question of whether Barwick CJ's extended formulation of the incontrovertibility principle in Garrett v The Queen (1977) 139 CLR 437 remains authoritative following later High Court decisions, finding it unnecessary to resolve that question on the facts.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 317, 319, 327
- Criminal Appeal Act 1912 (NSW), s 5F
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 12
Cases
- Director of Public Prosecutions v Humphrys [1977] AC 1
- Garrett v The Queen (1977) 139 CLR 437
- Gray v Dalgety & Co Ltd (1916) 21 CLR 509
- Island Maritime Ltd v Filipowski (2006) 226 CLR 328
- Jago v The District Court of New South Wales (1989) 168 CLR 23
- Likiardopoulos v The Queen (2012) 247 CLR 265
- Pearce v The Queen (1998) 194 CLR 610
- R v Carroll (2002) 213 CLR 635
- R v CB, R v MP [2011] NSWCCA 264
- R v Gilham (2007) 73 NSWLR 308
- R v McDermott (1899) 24 VLR 636
- R v Regan [2002] SCC 12
- R v Seller and McCarthy [2013] NSWCCA 42
- R v Whitby (1957) 74 WN (NSW) 441
- Rogers v The Queen (1994) 181 CLR 251
- Sambasivam v Public Prosecutions, Federation of Malaya [1950] AC 458
- Sio v The Queen (2016) 259 CLR 47
- Washer v The State of Western Australia (2007) 234 CLR 492